United States District Court, D. Hawaii
ORDER DENYING WITHOUT PREJUDICE APPLICATION TO
PROCEED IN FORMA PAUPERIS
A. Otake, United States District Judge.
the Court is Plaintiff Jack Stone's
(“Plaintiff”) Application to Proceed In Forma
Pauperis (“IFP Application”), filed March 11,
2019. For the reasons set forth below, the Court DENIES
WITHOUT PREJUDICE the IFP Application.
instant action arises out of a domestic dispute between
Plaintiff and his estranged wife. Plaintiff's wife
traveled with their minor child from Hawai‘i to Japan
in late 2018, without Plaintiff's knowledge or
consent. According to Plaintiff, his wife has since
abandoned their child and will not return the child's
U.S. passport. Plaintiff, who is currently residing in Japan
with their child, has been attempting to obtain a replacement
passport for their child so that he may bring him back to
February 6, 2019, Plaintiff filed a document titled
“PETITIONER SEEKS EMERGENCY ORDER TO COMPEL THE U.S.
DEPARTMENT OF STATE, AND THE U.S. EMBASSY IN TOKYO IN JAPAN
TO ISSUE REPLACEMENT PASSPORT FOR PETITIONER'S MINOR
CHILD WHO WAS BROUGHT TO JAPAN IN VIOLATION OF 18 U.S.C.
§ 1204, ” which was treated as a Complaint. The
Court construed the Complaint as requesting emergency
February 8, 2019, the Court issued an Order (1) Dismissing
Complaint; (2) Denying Application to Proceed In Forma
Pauperis; and (3) Denying Emergency Injunctive Relief. Doc.
No. 6. The Court granted Plaintiff leave to file an amended
complaint by March 8, 2019 and ordered Plaintiff to
concurrently file an IFP Application or pay the applicable
filed a First Amended Complaint (“FAC”) on March
11, 2019. He requests an order compelling the U.S.
Department of State to issue a replacement passport for his
minor child. FAC, Doc. No. 11 at ¶ 23. To satisfy 22
C.F.R § 51.28's requirements for execution of a
passport application by one parent, Plaintiff also seeks a
ruling, pursuant to 22 C.F.R. § 51.2(F),  that his
estranged spouse be found “incompetent due to
abandonment, and due to neglect and mistreatment of the
child, or in the alternative, remove parental authority of
the mother, due to violating 18 U.S.C. § 1204, abducting
the child to Japan.” Id. at ¶ 31. Section
51.28(a)(3)(ii)(F) allows one parent (versus both parents) to
execute a passport application if that parent can provide
documentary evidence that he or she “is the sole parent
or has sole custody of the minor.” 22 C.F.R. §
51.28(a)(3)(ii). Documentary evidence may include “[a]n
order of a court of competent jurisdiction terminating the
parental rights of the non-applying parent or declaring the
non-applying parent or legal guardian to be
incompetent.” 22 C.F.R. § 51.28(a)(3)(ii)(F).
seeks to proceed in forma pauperis. A court may authorize the
commencement or prosecution of any suit without prepayment of
fees by a person who submits an affidavit that the person is
unable to pay such fees. 28 U.S.C. § 1915(a)(1).
“An affidavit in support of an IFP application is
sufficient where it alleges that the affiant cannot pay the
court costs and still afford the necessities of life.”
Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir.
2015) (citing Adkins v. E.I. Du Pont De Nemours &
Co., Inc., 335 U.S. 331, 339 (1948)). Absolute
destitution is not required to obtain benefits under the IFP
statute, but “a plaintiff seeking IFP status must
allege poverty ‘with some particularity, definiteness
and certainty.'” Id. (citation omitted).
IFP Application, Plaintiff represents that his gross wages
total $1, 786.00 per month. However, in the FAC, Plaintiff
claims that he earns ¥ 270, 000 per month. FAC, Doc. No.
11 at ¶ 4. This is the equivalent of approximately $2,
431.42. Plaintiff also represents that he has
$5.67 in cash or in a checking or savings account. Finally,
Plaintiff identifies monthly transportation expenses totaling
¥ 30, 000 ($270.16) and $135, 000.00 in student loan
the Court does not exclusively rely on poverty guidelines to
determine whether an IFP application should be granted, such
guidelines are instructive. The Court would ordinarily
reference the pertinent Department of Health and Human
Services Poverty Guidelines when considering a litigant's
IFP application. Because Plaintiff currently resides and is
employed in Japan, however, the Court considers the poverty
line in Japan. The Organization for Economic Co-operation
and Development, of which Japan is a member, defines the
poverty line as half of the national median income.
(last visited March 29, 2019). As of 2015, the poverty line
was $16, 700.00.
(last visited March 29, 2019). The 2016 median household
income was $39, 165.00.
Yearly_ Household_ Incomes_in_Japan_2016 (last visited March
29, 2019). This results in a poverty line of $19, 582.50.
Plaintiff's annual salary totals $21, 432.00 or $29,
177.04 depending on the monthly income amounts provided by
Plaintiff. These figures exceed Japan's poverty line.
the Court's prior admonition that Plaintiff's IFP
Application must completely and accurately respond to all
questions, Doc. No. 6 at 6, he has again failed to provide
the necessary information for the Court to ascertain whether
he has alleged sufficient poverty. Plaintiff has not
disclosed any month expenses other than ¶30, 000
($270.16) in transportation expenses. Paragraph 6 of the IFP
Application requires a party to disclose “[a]ny
housing, transportation, utilities, or loan payments, or
other regular monthly expenses.” Moreover, while
Plaintiff claims to have substantial student loan debt, he
has not provided his monthly payment amounts, if any.
represents that his wife and child rely on him for financial
support. Given his multiple allegations that his wife has
abandoned their child and failed to show up for scheduled
appointments, and considering that the most recent email
correspondence from his wife dates back to January 15, 2019,
the Court questions the veracity of his representation that
he supports his wife financially. In any event, Plaintiff has
not provided the information requested in paragraph 7 of the
IFP Application, which directs the applicant to provide the
amount contributed to each person dependent on the applicant
for support. For these reasons, Plaintiff has failed to
make a sufficient showing of poverty to proceed in forma
the deficiencies identified above, the Court will grant
Plaintiff a final opportunity to provide complete details
about his current financial situation. Generalized
allegations of poverty will not suffice and Plaintiff must
fully and truthfully respond to each paragraph in the IFP